Surender Khare v. State N.C.T. of Delhi

order :- "State Vs. Surender FIR No. 90/07 PS R. K. Puram u/s 377/506 1PC Case received by transfer. It be checked and registered as per rules.

10.02.2011 Present: MsVandana Chauhan, Ld. Substitute APP for the State. Juvenile with parents. One of the Members is not sitting presently. Juvenile has been produced from central jail. Sh. David, Ld. counsel from DLSA has been asked to assist the party at this moment. The juvenile has been declared to be so vide order dt. 09.02.11 of the Ld. Adult Court. The juvenile has remained in custody for four years as of today. It is stated that while conducting the enquiry, the Board is to follow the procedure laid down for trial in summons cases. The ld. counsel refers to Section 258 Cr. P. C. applicable to summons cases. The provision empowers the Court to stop proceedings at any stage without pronouncing judgment for reasons to be recorded. Where such stoppage is made after evidence of principle witnesses being recorded, the provisions requires pronouncement of a judgment of acquittal and release of the offender where applicable. In the present case, the juvenile has been facing the enquiry since long. He has already undergone the maximum period for which any child can be detained in special home for rehabilitation. No fruitful purpose would be served by continuing the present enquiry. By virtue of the power bestowed by Section 258 Cr. P. C., the Board deems it fit that the proceedings in the present enquiry be stopped. As stipulated in the provision, since principle witnesses have been examined, the stoppage of the proceedings shall have the effect of acquittal of the juvenile. He be released if not wanted in any other case. File be consigned to Record Room. - sd - - sd - (Madhu Shukla) (Geetanjli Goel) Member, JJB-II Principal Magistrate JJB-II, Delhi Gate, New Delhi/10.02.2011/H It is clear that the Juvenile Justice Board had observed that the appellant had already undergone the maximum period for which any child / juvenile could be detained in a special home for rehabilitation and that no fruitful purpose would be served by continuing the enquiry under the said Act. Consequently, invoking the powers under Section 258 Cr. P.C, the Board thought it fit that the proceedings in the inquiry pursuant to FIR No. 90/ 2007 be stopped. Since the principal witnesses had been examined, the stoppage of the proceedings, as indicated in Section 258 Cr. P.C itself, would have the effect of acquittal of the juvenile. Consequently, the appellant was directed to be released, if not wanted in any other case.

¶7Thus, on the one hand, we have the present appeal which is pending before us and in which the appellant has not been regarded as a juvenile by the trial court. We also have the order dated 06.05.2010 passed by this Court whereby the appellant's application for suspension of sentence was rejected and the Court had observed that the trial court had arrived at the finding that the appellant was not a juvenile. On the other hand, we have the proceedings in respect of the FIR No. 90/2007, which has culminated in the order dated 10.02.2011 of the Juvenile Justice Board, whereby the appellant has been recognized has a juvenile under the said Act and the proceedings have been stopped by invoking the powers under Section 258 Cr. P.C. It is also clear from a reading of Section 258 Cr. P.C that when proceedings are stopped prior to pronouncement of a judgment but after evidence of the principal witnesses has been recorded, the same would have the effect of an acquittal.

¶8We, therefore, have an anomalous situation where, in respect of one FIR the appellant has been regarded as a juvenile within the meaning of the said Act, whereas under another FIR, he has not been considered to be a juvenile. The incidents in connection with the two FIRs are only two days apart: The date of occurrence in respect of FIR No. 82/2007 is

06.02.2007 and the date of occurrence in respect of FIR No. 90/2007 is

08.02.2007.

¶9While this Court in its order dated 06.05.2010 did notice that from the testimony of PW9 Dr Alexander F. Khakha, the appellant was not a juvenile on the date of the occurrence in FIR No. 82/2007, we agree with the learned counsel for the appellant that, first of all, this Court only recorded what the Trial Court had found and did not itself arrive at that finding and, secondly, the said observation was, in any event, only a prima facie one at the stage of consideration of the suspension of sentence application of the appellant and cannot be regarded as a conclusive determination of the age of the appellant. That being the position, once an application under Section 7-A of the said Act has been moved before us wherein the claim of juvenility has been raised, it is incumbent upon us to determine such a claim in terms of the provisions contained in the said Act and the said Rules. The detailed report with regard to the determination of the age of the appellant in the present case i.e., FIR No. 82/2007 has been exhibited as Exhibit PW9/A and the same has been proved by PW9 Dr Alexander F. Khakha. As per the report Exhibit PW9/A, the age of the appellant as on 07.04.2007 has been indicated to be 18-19 years. The date of the incident in the present case was 06.02.2007. Therefore, the age of the appellant as on the date of the incident would be two months less than the age given in Exhibit PW9/A which would mean that the appellant would be 17 years and 10 months old on the lower side. Thus, even if the benefit of one year margin on the lower side is not given, the appellant would still have to be regarded as a juvenile on the date of the incident. In case the benefit of one year is given on the lower side then, clearly, the appellant would be less than 18 years old on the date of the occurrence. In either eventuality, the appellant would have to be regarded as a 'juvenile in conflict with law' within the meaning of Section 2(l) of the said Act. Rule 12(3) of the said Rules stipulates that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining the documents specified in Clause (a), namely, (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; and in the absence of either (i), (ii) and (iii) of Clause (a), the medical opinion of a duly constituted Medical Board. In the present case, there is no evidence concerning the three types of documents mentioned in Clause (a) of Rule 12(3) of the said Rules. Consequently, it is the medical opinion of a duly constituted Medical Board, which will have to be considered for the purposes of declaration of the age of the appellant. No further medical opinion is necessary inasmuch as Exhibit PW9/A is the opinion of a duly constituted Medical Board comprising of Dr Alexander F. Khakha, Dr Ajay Kumar and Dr Vani. It is on the basis of the said opinion that we have come to the conclusion that the appellant was a juvenile on the date of the incident. This is also in conformity with the declaration of juvenility in the case arising out of FIR No. 90/2007.

¶10It is clear from the provisions of Section 7-A (2) of the said Act that if the court finds a person to be a juvenile on the date of commission of the offence in a proceeding under sub-Section (1) of Section 7-A, it shall forward the juvenile to the Board for passing an appropriate order and the sentence, if any, passed by a Court shall be deemed to have no effect.

¶11Section 6(2) of the said Act stipulates that the powers conferred on the Board by or under the said Act, may also be exercised by the High Court and the Court of Session, when the proceedings comes before them in appeal, revision or otherwise. Thus, instead of forwarding the appellant to the Board for passing an appropriate order, by virtue of Section 6(2) read with Section 7-A(2), this Court can pass the appropriate order.

¶12The orders that may be passed with regard to a juvenile are indicated in Section 15 of the Said Act. Section 15(1) provides that where a Board (in this case this Court) is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it thinks so fit, either (a) allow the juvenile to go home after advice or admonition; or (b) direct the juvenile to participate in group counselling and similar activities; or (c) order the juvenile to perform community service; or (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; or (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; or (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years; or (g) make an order directing the juvenile to be sent to a special home for a period of three years. It is clear that the maximum period for which a juvenile can be sent to a special home is three years in view of Section 15(1)(g) of the said Act.

¶13Section 16 (1) also stipulates that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any terms which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. The proviso to Section 16(1) stipulates that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juveniles in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such 'place of safety' and in such manner as it thinks fit and shall report the case for the order of the State Government. Section 16(2) provides that on the receipt of a report from a Board under sub-section (1) of Section 16, the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit. The proviso to Section 16(2) of the said Act is very material as it stipulates that the period of detention so ordered shall not exceed, in any case, the maximum period provided under Section 15 of the said Act.

¶14A reading of Sections 15 and 16 of the said Act makes it clear that even where the Board is satisfied upon an inquiry that the juvenile has committed an offence, the juvenile can at the most can be sent to a special home for a period of three years or if the juvenile has committed a very serious offence and has attained the age of 16 years, he can be kept in a place of safety under the protective custody of the State. But, this period of detention cannot exceed the maximum period of three years provided under Section 15 of the said Act.

¶15Coming back to the present case, we find that the appellant has been found guilty of having committed the offences he was charged with. The learned counsel for the appellant submitted straightaway that he is not challenging the conviction but is only claiming benefit of the said Act in view of the fact that the appellant was a juvenile on the date of commission of the offence. He submitted that the appellant has already been in custody for over four years and six months. The maximum detention of three years that the appellant could have undergone as a juvenile has already been exceeded and, therefore, he cannot be detained any further.

¶16A plea had been raised on behalf of the learned counsel for the State that the period of three years which the appellant is seeking to take advantage of in the present proceedings, has already been exhausted in the proceedings emanating from FIR No. 90/2007, which have been stopped by the Juvenile Justice Board by virtue of its order dated 10.02.2011. There are two answers to this contention raised on behalf of the State. The first is that the order dated 10.02.2011 passed by the Juvenile Justice Board operates as an acquittal and, therefore, the entire period of detention can be reckoned for the purposes of the present appeal emanating from FIR No. 82/2007. Secondly, even if we do not adopt this course, we find that the appellant would still be entitled to the benefit under the Said Act inasmuch as he would still have crossed the maximum period of detention contemplated under the said Act. This will become clear if we examine the details with regard to his period of custody. The appellant was arrested in both the cases, that is, FIR No. 82/2007 and FIR No. 90/2007 simultaneously on 11.02.2007. Insofar as the present case is concerned, he remained in custody throughout the trial period, that is, up to 29.03.2009. Thus, the period of custody when the appellant was an under-trial works out to two years, one month and eighteen days. In addition, the appellant has been in custody post-conviction with effect from 30.03.2009 till date i.e., 02.09.2011, which works out to two years, five months and two days. Since the under-trial period up to 29.03.2009 would be common in respect of both the offences, the benefit of set-off can be taken in respect of both the offences as has been settled by the Supreme Court in the case of State of Maharashtra v. Najakat: AIR 2001 SC 2255. In addition, the appellant has already undergone the period of two years five months and two days post-conviction. Hence, the appellant, in total, in this case, has been in detention for four years six months and twenty days which is far in excess of the maximum period of three years permissible under the said Act.

¶17In view of the foregoing, while the conviction of the appellant is sustained inasmuch as the appellant has not challenged the same, the sentence awarded to him is set aside and since he has already been in detention for over three years and, therefore, cannot be sent to a Special Home or 'place of safety' for further detention, he is directed to be released forthwith. This application is allowed and the appeal stands disposed of accordingly. BADAR DURREZ AHMED, J VEENA BIRBAL, J SEPTEMBER 02, 2011 SR

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on 02.09.2011 + SURENDER KHARE … Appellant - versus - STATE … Respondent Advocates who appeared in this case: For the Appellant : Mr Arvind Jain with Mr Kuldeep Singh For the Respondent : Mr Pavan Narang CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes BADAR DURREZ AHMED 1. This is an application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the said Act'). The prayer of the appellant is that he be declared as a juvenile within the meaning of Section 2(k) of the said Act and, consequently, that he be treated as a 'juvenile in conflict with law' as defined in Section 2(l) of the said Act. It has also been prayed that consequent upon such declaration, the appellant, who has been in custody since 11.02.2007, be released in view of the provisions of the said Act, whereby a juvenile cannot be detained for a period in excess of three years. 2. The present appeal arises out of the impugned judgment dated 21.03.2009 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 45/2007 arising out of FIR No. 82/2007 registered at Police Station R. K. Puram under Sections 302/363/376/201 IPC. The date of the incident in this case was 06.02.2007. By virtue of the impugned judgment, the appellant has been convicted under Sections 302/363/376/201 IPC and by a separate order on the point of sentence dated 21.03.2009 the appellant was sentenced to imprisonment for life in respect of the offence punishable under Section 302 IPC. A fine of ` 5,000/- was also imposed and in default of payment of the said fine, he was required to undergo two years imprisonment. He was also sentenced to rigorous imprisonment for three years in respect of the offence punishable under Section 363 IPC and a fine of ` 2,000/- was also imposed on him. In default of payment of which, the appellant was to undergo six months imprisonment. For the offence punishable under Section 376 IPC, the appellant was also awarded a sentence of life imprisonment with a fine of ` 5,000/- in default of which he was to undergo two years imprisonment. As regards the offence punishable under Section 201 IPC, the sentence awarded to the appellant was of seven years imprisonment with a fine of ` 2,000/- and in default whereof, he was required to undergo six months imprisonment. 3. In the present appeal, the appellant had moved an application (Crl. M. B. 1372/2009), seeking suspension of sentence. The said application came to be heard by a Division Bench of this Court on 06.05.2010, wherein, it was urged on behalf of the appellant that he was a juvenile at the time of the incident. However, this plea of the appellant was rejected and having regard to the other facts and circumstances of the case also, this Court did not find it to be a fit case for suspension of sentence and consequently dismissed the appellant's application for suspension of sentence. The order passed by this Court on 06.05.2010 is as under :- "+ Crl. M. (Bail) No. 1372/2009 in CrI.A.No. 878/2009 Learned counsel for the appellant has, in support of the present application for suspension of sentence, stressed only on one aspect viz. the appellant was juvenile at the time of incident. However, he could not controvert the position that PW9 Dr. Alexander F. Khakha, who had examined the appellant along with other doctors Dr. Ajay Kumar and Dr. Vani, opined that the appellant was more than 18 years and below 19 years of age as on 07.04.2007. This testimony of PW9 Dr. Alexander F. Khakha has been accepted by the learned Trial Court, on the basis of which, finding is arrived at that the appellant was major and not juvenile. Further, having regard to the facts of this case, we d